Opinion
15-cv-3214 (ENV) (SMG)
07-04-2017
NATHANIEL COLTER, Plaintiff, v. POLICE OFFICER NELSON REYES and POLICE OFFICER LAURENCE LAVERTY, Defendants.
SHORT FORM MEMORANDUM & ORDER
Jury selection in this case is scheduled for July 10, 2017. The parties have filed various motions in limine. See ECF Dkt. Nos. 36-41. Having considered the submissions of the parties, and the elaboration of some of their arguments at the pre-trial conference of June 27, 2017, the motions are resolved in the manner and for the reasons set forth below. I. Plaintiff's motions in limine
| Motion | Ruling |
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| (A) Motions to exclude: (i)the domestic incident report; (ii) theSPRINT report; (iii) the FireDepartment of New York("FDNY") call report; and (iv) thepre-hospital care report. See ECFDkt. No. 37 at Points I, II, and IV. | (A)(i) Plaintiff's motion to exclude the domestic incidentreport is granted in part and denied in part. That report wasprepared by defendant Officer Reyes, based upon informationprovided to him by the complaining victim, Imingia Bowen,whose call to police, on the morning of October 16, 2014, led toColter's arrest and the alleged use of excessive force at issue here.Clearly, the report itself falls under an exception to thehearsay rule, "either as a business record under Rule 803(6), . . . |
| or a public record under 803(8)." See Goldstein v. Laurent, No.09-cv-2437, 2011 WL 3586447, at *4 (S.D.N.Y. Aug. 2, 2011)(citing Parsons v. Honeywell, Inc., 929 F.2d 901, 907 (2d Cir.1991), and Rosario v. Amalgamated Ladies' Garment Cutters'Union, Local 10, 605 F.2d 1228, 1251 (2d Cir. 1979)). Colterdoes not argue otherwise. Whether any particular statementcontained in the report is admissible, however, turns on whether itwas communicated to the police officers before or after Colter'sarrest.To the extent Bowen provided her statement before Colterwas arrested (regardless whether Officer Reyes generated thereport itself after the arrest, the contemporaneous requirementwould be met), her statements would be admissible for the non-hearsay purpose of showing the circumstances known to thedefendant officers at the time of the incident—rather than to provethe truth of the statements themselves—and, for that reason,would be highly relevant to the jury's determination of thereasonableness of any force that the officers used. See generallyGraham v. Connor, 490 U.S. 386, 397, 109 S. Ct. 1865, 1872,104 L. Ed. 2d 443 (1989) ("[T]he 'reasonableness' inquiry in anexcessive force case is an objective one: the question is whetherthe officers' actions are 'objectively reasonable' in light of thefacts and circumstances confronting them, without regard to their |
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| underlying intent or motivation."). By contrast, though, if Bowenfirst spoke with Officer Reyes after Colter had been arrested, thenher statements recorded in the domestic incident report not onlywould be significantly less relevant, but also would constitutehearsay not falling within any exception, since the statementscould no longer be offered for the non-hearsay purpose of provingthe officers' knowledge at the time of the arrest, and, moreover,the "[s]tatements of third parties who have no duty to report whatthey observe, even if made as part of a police report, are notadmissible," unless they qualify under another hearsay exception.Braccia v. D'Blass Corp., No. 08-cv-08927, 2011 WL 2848146,at *7 (S.D.N.Y. June 13, 2011) (citing, inter alia, Parsons, 929F.2d at 907), report and recommendation adopted, 2011 WL2848202 (S.D.N.Y. July 18, 2011); see United States v.Bortnovsky, 879 F.2d 30, 34-35 (2d Cir. 1989); see also Johnsonv. Lutz, 253 N.Y. 124, 127-28, 170 N.E. 517, 518 (1930). In anyevent, moreover, even if post-incident statements by Bowendocumented in the report could squeeze into a hearsay exception,it is virtually inconceivable that they would pass a relevance test.If, on the other hand, Bowen gave her statement to theofficers prior to Colter's arrest and, accordingly, her statements inthe domestic incident report are relevant and admissible, any useof such statements at trial would be subject to the following |
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| additional guidelines. First, since both sides have identifiedOfficer Reyes and Bowen as potential witnesses, they may testifyfrom their own recollections regarding the matters covered in thereport, subject to the usual rules of relevance and prejudicebalancing. If necessary, they may refer to the report to refreshtheir recollections. To the extent there is a complete failure ofrecollection, and a foundation can be laid appropriate for theintroduction of excerpts from the report as past recollectionrecorded, those excerpts may be offered at that time. See Fed. R.Evid. 803(5). Any such excerpts would still need to vault thestandard evidentiary hurdles of relevance, probative value,prejudice, and hearsay. Second, no mention may be made at trialof the references in the report to Bowen's pregnancy at the time ofthe incident. The inflammatory nature of the detail that she waspregnant at the time that Colter allegedly struck her greatlyoutweighs any minimal probative value that it might add to theequation. See Fed. R. Evid. 403. Third, Bowen's statement in thereport that "[t]he police put [Colter's] head down on the hood of[the patrol] car [and] he hit his head against [the] window/glass"is excluded. That statement purports to describe events that tookplace during and immediately after the arrest, and, thus, would beoffered by defendants only to prove the truth of the assertion thatColter caused his own injuries. While Bowen could, if she were |
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| to take the stand at trial, offer such testimony live, that statementin the repot is hearsay that does not fall within any recognizedexception. Fourth, if the domestic incident report is to bereceived in evidence, all references to Bowen's pregnancy andcomment regarding Colter having hit his head on the car windowshall be redacted.(A)(ii)-(iii) Plaintiff's motions to preclude the SPRINTreport and FDNY call report are denied. Those reportspurportedly contain information gleaned by the 911 operator whoreceived the emergency calls related to the incident, as well as thecommunications relayed over the radio to the responding policeofficers, those officers' requests for assistance and emergencymedical services, and the responses to those requests. Colterobjects to the use of these reports on the basis that they containhearsay, including, specifically, a reference to a male carrying afirearm, which he contends would be unduly prejudicial, in lightof the fact that no gun was found on him or recovered from thescene of his arrest. See ECF Dkt. No. 37 at 2. However,assuming a proper foundation is laid at trial, the reports wouldqualify for an exception from the rule against hearsay as Rule803(6) business records. See United States v. Chen Kuo, No. 10-cr-671, 2011 WL 145471, at *11 (E.D.N.Y. Jan. 18, 2011) ("Thecourt is inclined to agree in this case that the 911 recordings and |
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| 'sprint report' would qualify as business records and would thusbe admissible despite their hearsay status."). And, moreimportantly, those portions of the reports that indicate what thedefendant officers had been told prior to engaging Colter thatmorning to arrest him—including the reference to a reported malewith a firearm—are not hearsay at all, since they will not beoffered for their truth, but rather to demonstrate the circumstancesknown to the officers at the time of Colter's arrest. Plainly, giventhat the jury will be asked to decide whether the defendantofficers' actions, including any use of force claimed by Colter,were "objectively reasonable . . . in light of the facts andcircumstances confronting them," this evidence is far morerelevant than prejudicial. Graham, 490 U.S. at 397. The SPRINTreport and FDNY call report may, therefore, be utilized at trial—again, assuming the foundation, with respect to the FDNY callreport, in particular, satisfies the relevance test.(A)(iv) Although plaintiff did not mention the pre-hospital care report in his in limine motions, he did attach a copyof it to his motion papers, and, at the pre-trial conference, madeclear that he objects to the use of the report as evidence at trial.The pre-hospital care report was prepared by FDNY emergencymedical technicians ("EMTs") who responded to the scene ofColter's arrest, and who, now, have been noticed as possible trial |
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| witnesses. Colter concedes, as he must, that the document is avalid business record, for purposes of the Rule 803(6) hearsayexception. Nonetheless, he argues that portions of the report areinadmissible hearsay that should be redacted.The first target of Colter's redacting pen is a sentenceindicating that he told the EMTs that he had hit his head on thepolice car "because he is a thug." ECF Dkt. No. 37-4 at 2. Incontext, it is not clear whether the words "because he is a thug"are attributed to Colter himself or to the EMT who prepared thereport. If Colter said it, then it likely would come in as a partyadmission—i.e., that he actively caused his own injury. See Fed.R. Evid. 801(d)(2)(A). But, if the EMT added that flourish on hisown, then it is hearsay that does not obviously fit under anyrecognized exception. Given this ambiguity, the Court agrees thatthe five-word phrase "because he is a thug" should be redacted, atleast for the time being.The second sentence that Colter seeks to redact is moreobviously attributable to the EMT who authored the report. Itstates that Colter "was verbally abusive and threatening towards[the] crew and [the police] while in the ambulance." ECF Dkt.No. 37-4 at 2. Colter contends that this statement, too, should beredacted as hearsay not falling within any exception—and theCourt agrees. The defense would, presumably, offer the statement |
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| for its truth, and it does not appear to be covered by any particularhearsay exception. Further, if it has any relevance at all, itsprejudice vastly outweighs it. | |
| (B) Plaintiff's motions topreclude evidence of his priorcontacts with the criminal justicesystem, including: (i) his juvenileadjudications; (ii) his felonyconvictions; and (iii) hismisdemeanor convictions, arrestsrecord, prison record, and rap sheet.See ECF Dkt. No. 37 at Points V,VI, VIII, IX. | (B)(i) In response, defendants represent that they will notintroduce any evidence or elicit any testimony concerningColter's juvenile adjudications. Colter's motion on this score is,therefore, granted as unopposed.(B)(ii) Colter has been convicted of three felonies: firstdegree attempted robbery, in 2004; first degree criminal contempt,in 2014; and as a felon-in-possession, in 2016. Defendants seekto use them for purposes of impeachment, under Rule609(a)(1)(A), which provides that a witness's conviction for acrime punishable by a term of more than one year in prison maybe utilized as impeachment, subject to the balancing test of Rule403. If the conviction is more than ten years old, Rule 609(b)further provides that "[e]vidence of the conviction is admissibleonly if . . . its probative value, supported by specific facts andcircumstances, substantially outweighs its prejudicial effect." Theparties agree that, "in balancing probative value againstprejudicial effect under this rule, courts examine the followingfactors: (1) the impeachment value of the prior crime, (2) theremoteness of the prior conviction, (3) the similarity between thepast crime and the conduct at issue, and (4) the importance of the |
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| credibility of the witness." Jean-Laurent v. Hennessy, 840 F.Supp. 2d 529, 544 (E.D.N.Y. 2011).Evaluated under this rubric, Colter's 2004 attemptedrobbery conviction must be excluded because, while a convictioninvolving theft can be probative of a witness's credibility, seeUnited States v. Steele, 216 F. Supp. 3d 317, 326-27 (S.D.N.Y.2016), the impeachment value of this 13-year-old convictioncannot be said to substantially outweigh its prejudicial impact, asrequired by Rule 609(b), see United States v. Brown, 606 F. Supp.2d 306, 313 (E.D.N.Y. 2009) ("Under Rule 609(b), 'convictionsover 10 years old [should] be admitted very rarely and only inexceptional circumstances,' as 'convictions over ten years oldgenerally do not have much probative value.'" (citationsomitted)).Next comes the 2014 conviction for criminal contempt.While a contempt conviction is not, on its face, as probative of awitness's veracity as convictions for crimes "such as . . . perjury,criminal fraud, and embezzlement," see United States v. Khalil,No. 05-cr-573, 2005 WL 3117195, at *2 (2d Cir. Nov. 22, 2005),it certainly carries weight as impeachment, given that it involvesthe disregard of the orders, rules, and proceedings of a court—notunlike the taking of an oath to tell the truth at trial. In any event,"Rule 609(a)(1) presumes that all felonies are at least somewhat |
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| probative of a witness's propensity to testify truthfully." UnitedStates v. Estrada, 430 F.3d 606, 617 (2d Cir. 2005) (citationomitted). Moreover, given the apparent likelihood that Colter willbe the only witness who will testify at trial that the defendantofficers used excessive force in arresting him, that defendants willdeny his allegations, and that there is a dearth of othereyewitnesses and documentary evidence concerning that coredispute, Colter's credibility—or lack thereof—is criticallyimportant. See Jones v. City of N.Y., No. 98-cv-6493, 2002 WL207008, at *3 (S.D.N.Y. Feb. 11, 2002). The fact that theconviction is relatively recent—and well within the ten-yearwindow of Rule 609—tips the scales yet further towardadmissibility. Further, while the defendant officers allegedly usedexcessive force in arresting Colter on a separate charge ofcriminal contempt, it does not read on the balancing assubstantially prejudicial, and the jury will not be asked to decidewhether the arrest itself was justified, or whether Colter did, infact, commit criminal contempt. Most critically, of course, theconviction can be used solely for purposes of impeachment andfor no other purpose. Specifically, defendants cannot use it in anyway to bolster an argument that the conviction reads on thetotality of circumstances and makes the amount of force usedreasonable. On balance, then, the Court finds that the probative |
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| impeachment value of Colter's 2014 contempt convictionoutweighs any potential prejudicial effect, and it may beaddressed for purposes of impeachment.The balancing test produces the same result with respect toColter's 2016 conviction as a felon in possession of a firearm.Although the impeachment value of such a firearms conviction ison the lower end of the spectrum, see Brown, 606 F. Supp. 2d at313-14, it, too, is at least somewhat probative of Colter'scredibility, see Estrada, 430 F.3d at 617. The three remainingfactors all break toward admissibility. The conviction is less thana year old (and, indeed, Colter is still serving the sentence), itbears little similarity to the conduct at issue in this action, and, asalready noted, his credibility as a witness is of paramountimportance. Accordingly, Colter's 2016 felon-in-possessionconviction also may be utilized as impeachment.Nonetheless, "the aggregate prejudicial effect of [both]convictions must [next] be weighed against their probative value,"because, "[o]nce a prior felony has been presented to the jury, theincremental value of additional convictions may be diminished."United States v. White, No. 08-cr-682, 2009 WL 4730234, at *5(E.D.N.Y. Dec. 4, 2009) (citing United States v. Washington, 746F.2d 104, 107 (2d Cir. 1984) (Newman, J., concurring)). Here,the collective prejudicial effect of both convictions would, indeed, |
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| outweigh their probative value. For that reason, the Court willpermit the defense to make use of only one of these twoconvictions—and for impeachment purposes only. See id. at *6.In advance of trial, defense counsel shall advise the Court andplaintiff's counsel which conviction it has chosen. Whichever ofthe two convictions is selected, the defense inquiry will be limitedto the identification of the name of the offense, the date ofconviction, and the sentence imposed. See Estrada, 430 F.3d at616 ("inquiry into the 'essential facts' of the conviction, includingthe nature or statutory name of each offense, its date, and thesentence imposed is presumptively required by . . . Rule[609(a)(1)], subject to balancing under Rule 403" (citationsomitted)).(B)(iii) Plaintiff also moves to preclude a laundry list ofother information about his prior contacts with the criminal justicesystem, including his misdemeanor convictions, arrests record,prison record, and rap sheet. His motion is granted, and all suchinformation shall be excluded. None of Colter's other priorconvictions involved dishonesty or a false statement, as requiredfor admission under Rule 609(a)(2). Likewise, the smorgasbordof other misconduct that the defense has identified in theiropposition papers—such as Colter's prior arrests, his multiplestints in prison, his numerous infractions in those prisons, his |
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| States v. McKeon, 738 F.2d 26, 31 (2d Cir. 1984); Pitter v. Metro-N. Commuter R.R., 826 F. Supp. 2d 612, 618 (S.D.N.Y. 2011).Contrary to Colter's argument, such statements are not hearsay,but rather are admissions by a party-opponent, which are excludedfrom the very definition of hearsay, see Fed. R. Evid. 801(d)(2),and, similarly, "prior inconsistent statements offered forimpeachment are, by definition, not hearsay" either, since they arenot offered for the truth of the matter asserted, Order, Skinner,No. 15-cv-6126, ECF Dkt. No. 67 at 16 (quoting United States v.Mergen, 764 F.3d 199, 206 (2d Cir. 2014)). Colter further arguesthat his pleadings and discovery responses should be excludedbecause they were prepared by his legal counsel and do riotcontain his own "sworn statements." ECF Dkt. No. 37 at 3. Thatargument, too, falls flat, because "statements made by an attorneyconcerning a matter within his employment may be admissibleagainst the party retaining the attorney"—which is certainly thecase here. Order, Skinner, No. 15-cv-6126, ECF Dkt. No. 67 at16 (quoting Wechsler v. Hunt Health Systems Ltd., No. 94-cv-8294, 2003 WL 22764545, at *3 (S.D.N.Y. Nov. 21, 2003)).Although plaintiff's motion is denied, the Court reservesdecision as to whether any specific statement should be redactedor excluded—particularly any statements pertaining to claims thatColter has voluntarily withdrawn and will not be put to the jury. |
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| See, e.g., Chisholm v. Sloan-Kettering, No. 09-cv-8211, 2011 WL2015526, at *3 (S.D.N.Y. May 13, 2011). | |
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| (D) Plaintiff's motion topreclude defendants frommentioning or offering evidenceregarding his mental healthdiagnoses and treatment. See ECFDkt. No. 37 at Point XI. | (D) Plaintiff's motion is granted since there is noindication that, at the time of the incident, the defendant officershad any knowledge of his alleged mental health conditions.Given the absence of such knowledge, any such evidence wouldnot be relevant in evaluating whether any force that they used wasexcessive. See, e.g., Wallace v. Mulholland, 957 F.2d 333, 336(7th Cir. 1992) (plaintiff's mental health history properlyexcluded where the defendant officers had no knowledge of it atthe time of the incident). Colter is cautioned, however, that hecould open the door to the admission of such evidence if heargues, for instance, that his mental health conditions were causedor exacerbated by the alleged use of excessive force during hisarrest—which, given the apparent absence of any medical expertsas to cause or exacerbation of any such conditions, would seem tobe an impossible argument for Colter to make. |
| Motion | Ruling |
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| (A) Defendants' motions topreclude plaintiff from: (i) referringto defense counsel as "CityAttorneys," and (ii) mentioning oroffering evidence ofindemnification. See ECF Dkt. No.38 at Point I. | (A)(i) Plaintiff has not opposed this motion, and it isgranted to the extent that plaintiff will not be permitted to refer todefense counsel as "City Attorneys." To maintain a level playingfield, though, the jury will be instructed once, at the beginning oftrial, that "defendants are represented by attorneys from the Officeof the New York City Corporation Counsel because they aremembers of the New York City Police department, which is anagency of the City of New York." See Jean-Laurent, 840 F.Supp. 2d at 550.(A)(ii) As for indemnification, defendants' motion isgranted to the extent that plaintiff will not be permitted to refer toor suggest the possibility that the City will indemnify thedefendant officers. If, however, defendants open the door byoffering argument or evidence of the officers' limited financialcapacity, plaintiff may move for reconsideration of this ruling.See Anderson v. Aparicio, 25 F. Supp. 3d 303, 314 (E.D.N.Y.2014), aff'd and remanded sub nom. Anderson v. Cty. of Suffolk,621 F. App'x 54 (2d Cir. 2015); cf. Provost v. City of Newburgh,262 F.3d 146, 163-64 (2d Cir. 2001). |
| (B) Defendants' motion topreclude plaintiff from requesting aspecific dollar amount from thejury. See ECF Dkt. No. 38 at PointII. | (B) The motion is denied except that plaintiff's counselwill only be permitted—solely in the context of closingargument—to state what liability and damages the evidence hasestablished, and to submit a specific dollar amount that plaintiffcontends is reasonable compensation for his loss. The Court willinstruct the jury that statements by lawyers in closing are nothingmore than argument. See Edwards v. City of New York, No. 08-2199, 2011 WL 2748665, at *2 (E.D.N.Y. July 13, 2011); seealso Lightfoot v. Union Carbide Corp., 110 F.3d 898, 912 (2d Cir.1997). |
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| (C) Defendants' motions topreclude plaintiff from elicitingevidence of other complaints to theCivilian Complaint Review Board("CCRB") concerning defendants orother police officers who may becalled to testify, any such officers'performance evaluations, and anyother civil rights suits filed againstsuch officers. See ECF Dkt. No. 38at Point III. | (C) In opposition to defendants' broad motion to precludeinquiry into or documentary evidence of any CCRB complaints,performance evaluations, and other civil rights suits, Colter hasindicated his desire to introduce evidence about three prior CCRBcomplaints that were lodged against defendant Officer Reyes,which relate, respectively, to incidents that allegedly occurred inJanuary, July, and August of 2014.At the doorstep, though, any inquiry into the January andAugust 2014 complaints must be precluded because, as Colterconcedes (see ECF Dkt. No. 41 at 4-11), the complaints wereinvestigated by CCRB and were found to be unsubstantiated. SeeHardy v. Town of Greenwich, 629 F. Supp. 2d 192, 197 (D. Conn.2009) ("The Second Circuit has held that evidence of civilian |
| complaints is properly excluded on Rule 403 grounds where thosecomplaints have been properly investigated and have been foundto be unsubstantiated." (citing Berkovich v. Hicks, 922 F.2d 1018,1023 (2d Cir. 1991), and Thomas v. Roach, 165 F.3d 137, 145 (2dCir. 1999))). Also, while CCRB found the July 2014 complaintsubstantiated insofar as it concluded that Officer Reyes had usedforce against the complainant, evidence pertaining to it, too, mustbe excluded, under Rules 403 and 404(b).Colter contends that an inquiry into these prior CCRBcomplaints would be appropriate, consistent with Rule 404(b), inorder to prove intent, pattern, and lack of mistake on the part ofthe defendant officers. His "intent" argument fails, however,because excessive force claims are evaluated under an objectivereasonableness standard, which means that the defendant officers'subjective "intent is irrelevant to the primary question whetherexcessive force was used." Ricketts v. City of Hartford, 74 F.3d1397, 1411, 1414 (2d Cir. 1996) (quoting Graham, 490 U.S. at396-97), as amended on reh'g in part (Feb. 14, 1996); seeStephen v. Hanley, 79 Fed. R. Evid. Serv. 875, 2009 WL1471180, at *3, 7 & n.2 (E.D.N.Y. May 21, 2009). Nor canColter's "pattern" argument withstand scrutiny, since none of thethree CCRB complaints involved a factual scenario analogous tothe case at bar. See Ricketts, 74 F.3d at 1414 ("[W]e would |
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| consider it an abuse of discretion to admit [similar act] evidence ifthe other act were not sufficiently similar to the conduct at issue."(second alteration in original) (citation omitted)). Certainly, theprior complaints do not share any unusual characteristics with thecurrent case, or otherwise reveal a unique scheme on the part ofthe defendant officers. See Berkovich, 922 F.2d at 1022-23 (toestablish a pattern of conduct, "the extrinsic acts must share'unusual characteristics' with the act charged or represent a'unique scheme'" (citation omitted)). Further, as the defendantofficers have not asserted "accident" or "mistake" as a defense,Colter's argument on that front must be rejected, too. SeeRicketts, 74 F.3d at 1414.Anticipating the Court ruling against his Rule 404(b)arguments, Colter has also argued, in the alternative, that Rule608 permits him to cross-examine Officer Reyes about the July2014 incident and its subsequent investigation by CCRB, duringwhich he allegedly offered inconsistent accounts of whether andto what extent he had used force against the complainant. But,even assuming, arguendo, that this incident and investigationwere probative of Officer Reyes's veracity—a doubtfulproposition, given the apparent absence of any finding or even acharge by CCRB or any other body that he perjured himself ormade a false statement—Colter's proposal to cross-examine |
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| Officer Reyes about the matter must be rejected, under Rule 403.To permit inquiry into this unrelated complaint and subsequentinvestigation would be to allow plaintiff's counsel to conduct anentirely separate trial within a trial. Any impeachment value thatplaintiff's counsel might be able to squeeze out of such a mini-trial would be overwhelmed, not only by the risk of undueprejudice to Officer Reyes, but also by the inevitable confusionthat would ensue and the diversion of the jury's focus away fromthe narrow, straightforward factual dispute at the heart of thiscase, which is: whether, on the morning of October 16, 2014,Officer Reyes and Officer Laverty used excessive force in thecourse of arresting Colter. For these reasons, the motion isgranted. |
If plaintiff testifies regarding alleged emotional damages, he might, thereby, open the door to the admission of additional details concerning his criminal history. See Banushi v. Palmer, No. 08-cv-2937, 2011 WL 13894, at *3 (E.D.N.Y. Jan. 4, 2011), aff'd, 500 F. App'x 84 (2d Cir. 2012). If that occurs, the Court will take up the issue at that time.
So Ordered. Dated: Brooklyn, New York
July 4, 2017
/s/ USDJ ERIC N. VITALIANO
ERIC N. VITALIANO
United States District Judge